Are Article 82 EC and Intellectual Property Interoperable? The State of the Law Pending the Judgment in Microsoft v. Commission

Competition Policy International, Vol. 3, No. 1, Spring 2007

39 Pages Posted: 18 May 2007

See all articles by Robert O'Donoghue

Robert O'Donoghue

Brick Court Chambers

Maurits Dolmans

Cleary Gottlieb Steen & Hamilton LLP

Paul-John Loewenthal

Cleary Gottlieb Steen & Hamilton LLP

Abstract

The objectives of intellectual property rights (IPR) and competition law are essentially the same: both promote innovation to the benefit of consumers. IPRs are, however blunt instruments that strike the right balance in general, but in exceptional individual situations may not achieve (and may sometimes even obstruct) the innovation policy goal. Competition law is a useful tool to redress the balance in these situations, and the European Commission and EC courts have recognized that in exceptional cases the exercise of IPRs may infringe competition law. This article examines the extent to which Article 82 EC restricts the use of IPRs, pending the judgment of the CFI in Case T-201/04, Microsoft v. Commission.

Keywords: intellectual property, anitrust, competition law, European Commision, refusal to license

Suggested Citation

O'Donoghue, Robert and Dolmans, Maurits and Loewenthal, Paul-John, Are Article 82 EC and Intellectual Property Interoperable? The State of the Law Pending the Judgment in Microsoft v. Commission. Competition Policy International, Vol. 3, No. 1, Spring 2007, Available at SSRN: https://ssrn.com/abstract=987331

Robert O'Donoghue (Contact Author)

Brick Court Chambers

7 - 8 Essex St.
London, WC2R 3LD
United Kingdom

Maurits Dolmans

Cleary Gottlieb Steen & Hamilton LLP ( email )

Rue de la Loi 57
Brussels, 1040
Belgium

Paul-John Loewenthal

Cleary Gottlieb Steen & Hamilton LLP ( email )

Rue de la Loi 57
Brussels, 1040
Belgium

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